The Ontario Human Rights Tribunal in Klumpenhouwer v. Lowe’s Companies Canada, ULC, 2013 HRTO 330 (CanLII) recently considered whether to dismiss an Application under the Human Rights Code because there was no reasonable prospect that the Application or part of the Application will succeed. Further, the employer sought to have a named respondent removed from the Application.
The Applicant was a newly hired employee who was attending a training program at a location in a different city that required that the Applicant and other employees stay overnight in a hotel, the cost of which was paid by the Respondent.
According to the Tribunal’s summary:
… the applicant’s roommate requested to change rooms after he came into their room and smelled marijuana. The roommate changed hotel rooms. The next day when the applicant arrived at work, he was told that his employment was terminated effective immediately and no reasons were given for his termination.
The Applicant admits that he smoked marijuana on the night in question.
Test for Reasonable Prospect of Success
The Tribunal is authorized under the Rules of Procedure to hold a summary hearing to determine “whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.”
In determining whether an Application has no reasonable prospect of success, an Application must at least contain sufficient facts that, if accepted as true, could reasonably lead to a finding of a violation of the Code.
The leading case is Dabic v. Windsor Police Service, 2010 HRTO 1994 (CanLII):
… In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
During the hearing, the Applicant abandoned his allegations that the respondent had discriminated against him on the basis of race and colour and his only allegation was that he was discriminated against on the basis of disability. Specifically, the Applicant alleged that he was addicted to marijuana. Accordingly, the Tribunal refused to dismiss the Application on the basis that the Application had no reasonable prospect of success.
The Tribunal also instructed the Applicant “to establish his disability, the Tribunal would expect that medical documentation and/or medical evidence would be submitted by the applicant and failure to provide this documentation and/or evidence may result in his Application being dismissed.”
Removing Personal Respondents
Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party.
The Tribunal in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 (CanLII)
Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
The leading case of Persaud v. Toronto District School Board, 2008 HRTO 31 (CanLII), 2008HRTO 31, elaborated on the factors that the Tribunal should consider in deciding whether to remove a personal respondent from the Application:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
- Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
- Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
- Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
- Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
- Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
Accordingly, the Tribunal removed the personal respondent from the Application.
In the Lowes case, there was no allegation of harassment or discrimination specifically against the individual respondent and the corporate respondent maintained that it was vicariously liable for the conduct of the individual respondent who they maintained that he was acting in the course of his employment.
